First Circuit holds that hair sample drug test may be unlawful because of its disparate impact on African Americans

The U.S. First Circuit Court of Appeals has held that the Boston Police Department may have violated Title VII of the Civil Rights Act because it used a drug test that analyzed hair samples which had a disparate impact on African American police officers. After looking at the statistical differences between the rates at which the drug tests yielded positive results for African American and white police officers over an eight-year period, the court was “almost certain that the difference in outcomes associated with race over that period cannot be attributed to chance alone.”

Experts for the African American officers who brought the case believe that these differences in drug test results occurred, in part, because African Americans’ hair differs from white people’s hair. These experts testified that African Americans tend to have higher levels of melanin in their hair which causes cocaine and associated chemicals to bind to their hair at a higher rate. Cocaine and associated chemicals binds to hair when cocaine powder is in the air or when the person has undergone certain cosmetic hair treatments which are more common in the African American community. These experts also testified that hair tests are relatively unreliable. In fact, the federal government has refused to authorize hair tests in the screening of federal employees and employees of private industries for which the federal government regulates their drug testing.

Now that the First Circuit has determined that this hair sample drug test had a disparate impact on African Americans, the Boston Police Department, and related defendants, must prove that the drug test is “predictive of or significantly correlated with” drug use. If they cannot prove that their drug test sufficiently predicts drug use, they will be liable for violating Title VII. If they can prove that their drug test sufficiently predicts drug use, the African American police officers could still prevail if they can show that there is an alternative drug test that also predicts drug use but that does not have as large of a disparate impact on African Americans as the hair test.

“I don’t want any police officer, anyone who works in public safety, or anywhere for that matter, to be using drugs. I also don’t want people accused of something that the science can’t say, ‘This is what they did,’ ” said Larry Ellison, president of the Massachusetts Association of Minority Law Enforcement Officers. “Not everyone grows hair. Not everyone’s hair grows in the same manner. They’re not taking all the hair from the same place. You end up with these problems.”

The African American police officers also argued that the Boston Police Department violated their constitutional rights to due process (a) when it fired them and (b) because it failed to properly train its drug testers. Additionally, they argued that the Boston Police Department violated the Americans with Disabilities Act (ADA) because it fired them based on an erroneous assumption that they were drug addicts. The First Circuit rejected these arguments. As such, when the case returns to the trial court, only the Title VII claim will continue to be litigated.